ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Civil No. 75-1120

Adams, Rosenn and Garth, Circuit Judges. Garth, Circuit Judge.

Author: Adams

ADAMS, Circuit Judge.

This appeal presents two principal issues. First, we must decide whether the district court had jurisdiction to enjoin the appellant union from refusing to cross a "stranger picket line."*fn1 Then, if that question is answered in the negative, we must determine whether a coercive civil contempt decree, based on a violation of the injunction, can survive the invalidation of the underlying order.

I.

The United Steelworkers of America and its Local Union No. 1537 have for many years represented the production and maintenance employees of the Latrobe Steel Company. Local 1537 and Latrobe Steel were signatories to a collective bargaining agreement that contained a broad no-strike clause*fn2 and an expansive grievance-arbitration provision.*fn3

The Steelworkers and another local union have been the certified representatives of the office, clerical and technical employees at the Latrobe plant since 1974. After efforts to negotiate a collective bargaining agreement between the office workers local and Latrobe Steel proved unsuccessful, the office employees established a picket line outside of the Latrobe facility at about 11:00 P.M. on September 4, 1975. As a result of the picket line, the production workers on the midnight shift refused to enter the plant.

Early the next morning, September 5th, Latrobe Steel brought an action in the district court under section 301 of the Labor Management Relations Act of 1947,*fn4 seeking a temporary restraining order against the refusal of the production employees to cross the picket line. Counsel for the production workers union was not present at the time suit was filed and the preliminary restraining order was requested, and was not notified of the pendency of the action until 12:55 P.M. that day. When counsel for the union arrived, a hearing was held on the afternoon of September 5th. At its conclusion, Judge Ralph Scalera issued a preliminary injunction prohibiting the union and its members from engaging in any work stoppage and directing the parties to the suit to utilize the grievance and arbitration mechanism to resolve any disputes.*fn5

After the entry of the preliminary injunction, the officers of Local 1537 proceeded to inform their members that a meeting would be held on September 7th, and urged them to return to work. It appears from the record that the production workers complied with the injunction on September 6th and 7th.*fn6 However, mass picketing by the office workers prevented members of Local 1537 from entering the plant on September 8th and 9th. But even after Latrobe Steel had obtained a state court injunction against the striking office workers and the mass picketing had ceased, the production employees continued to stay off the job and did not return to work until September 18, 1975.

When the production workers did not report for work on September 10th, Latrobe Steel moved the district court to hold Local 1537 and certain of its officers and members in "civil contempt."*fn7 Following a full hearing the district court ruled that the union was "adjudged in civil contempt."*fn8 Judge Scalera did not rely on the events of September 8 and 9, noting that it may have been impossible for the union to comply on those days. Instead, he grounded his holding on the refusal of the workers to report on September 11th and 12th, after the mass picketing had terminated and there was no question of the ability of the production workers union to comply with the preliminary injunction.

The district court's contempt order levied a two-part fine on the union. An assessment of $10,000 was imposed, payable to the United States, if the production employees did not report for work at the next shift beginning midnight, September 12th. The court's adjudication also provided that the union would have to pay an additional $10,000, again to the United States, for each subsequent day the union failed to comply with the preliminary injunction. On October 3, 1975, the district court entered an order staying all proceedings to enforce the contempt judgment until disposition of a motion to vacate the preliminary injunction and any appeals from such disposition.

In an opinion filed on December 10, 1975, the district court denied the union's motion to vacate the preliminary injunction.*fn9 The present appeal followed.

This Court has jurisdiction of the appeal from the grant of the preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). If the contempt adjudication in this case were to be denominated as criminal contempt, it is clear that we would have an independent jurisdictional base over that order.*fn10 Even if we determine that the contempt decree was civil in nature, however, we reach the same result. This is so because although an adjudication of civil contempt is not ordinarily appealable, it is well established that an appellate court may consider the matter of a civil contempt in connection with an appeal from the underlying preliminary injunction.*fn11

After a careful review of the facts and the authorities, we conclude that the preliminary injunction as well as the contempt judgment in this case must be vacated.

II.

The opinion of the Supreme Court in Buffalo Forge Co. v. United Steelworkers of America,*fn12 entered after the appeal in this case was filed,*fn13 significantly altered the backdrop against which the jurisdictional issue must be considered.

Buffalo Forge presented a factual pattern closely analogous to that in the case at hand. A production and maintenance union was a party to a collective bargaining agreement that contained broad no-strike and grievance-arbitration provisions. Office, clerical and technical workers at the plant, after failing to negotiate a satisfactory collective bargaining agreement, established a picket line which the production and maintenance employees refused to cross.*fn14 The employer then sought an injunction in the district court. Relief was denied, the district court stated, because section 4 of the Norris-LaGuardia Act*fn15 deprived it of jurisdiction.*fn16 The Second Circuit affirmed.*fn17

On appeal, the Supreme Court held that district courts are not empowered to enjoin a "sympathy" strike pending an arbitrator's decision as to whether the strike was forbidden by a no-strike clause of a collective bargaining agreement. The Supreme Court distinguished Buffalo Forge from Boys Markets, Inc. v. Retail Clerk's Union,*fn18 where the Court had held that section 301 of the Labor Management Relations Act carved out a narrow exception to the anti-injunction policy enunciated in section 4 of the Norris-LaGuardia Act. In Boys Markets the union, in the face of a collective-bargaining agreement with broad no-strike and grievance-arbitration clauses, had engaged in a work stoppage over a dispute which both parties were contractually bound to arbitrate. The Supreme Court had ruled that section 301 authorized the issuance of an injunction because the strike had the purpose and effect of evading an obligation to arbitrate that was specifically set forth in the contract, and consequently deprived the employer of the benefit of his bargain.*fn19

The strike in Buffalo Forge, however, was not over a dispute subject to the grievance-arbitration mechanism of the collective bargaining agreement.*fn20 Rather, legality of the sympathy strike itself was the controversy that was possibly subject to arbitration. Under no interpretation of the collective-bargaining agreement, stated the Supreme Court, could it possibly be found that the cause of the strike by the production and maintenance workers - the impasse in the office workers' negotiations - was subject to arbitration between the production workers local and Buffalo Forge.*fn21 And while the sympathy strike may have been in violation of the no-strike provision, this alone did not establish the foundation for the Boys Markets exception and thus warrant the issuance of an injunction.

Buffalo Forge controls the present case.*fn22 The work stoppage by the production workers at Latrobe Steel was not over an arbitrable dispute. Instead, the strike was precipitated by a picket line which was established by members of another union, the office workers, in the course of a controversy with Latrobe by the latter group. Although the legality of the work stoppage by the production workers may have been subject to arbitration, the strike itself did not manifest an attempt to evade the arbitral process. As in Buffalo Forge, "There is no necessity . . . such as was found to be the case in Boys Markets, to accommodate the policies of the Norris-LaGuardia Act to the requirements of § 301 . . . ."*fn23 Since the work stoppage in this case, as was true in Buffalo ...

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